In re the Opening of Forty-eighth Street , 46 N.Y.S. 311 ( 1897 )

Cullen, J.:

The rule has been so often reiterated that, an award of ' commissioners óf appraisal will not be-set aside for inadequacy or as excessive, unless the award' is so palpably wrong as to-shock' the sense of justice, that it is-not necessary to cite any authorities in its support. At the same time- an award will be set aside if it appears that the commissioners proceeded on .an- erroneous principle: in making their award. The appellant’s'land, is situate at the intersection of; Forty-eighth street and Sixth avenue, for the opening of which ■ streets proceedings were instituted. At the time of the institution of this proceeding ■ Sixth, avenue had not been opened. The land taken from the appellant was a trifle less than six-sevenths of an'-acre. .The lowest, valuation of this property, considered as farm land, fixed by any of the affidavits in behalf of the city, is $3,500 an acre. The commissioners awarded the appellant $500. It is _ apparent, from the affidavits and the proceedings before the commissioners, that this determination was reached by the consideration that the value of the remaining lands of the appellant was enhanced by the improvement, and that the amount awarded represents only what the commissioners determined was the difference between the value of the whole tract to the appellant before the taking and the value of that which was left after the taking. This appeal, therefore, presents the correctness of such a rule and proceedings to open streets in the city of Brooklyn.

The learned counsel for the respondent contends that the rule followed by the commissioners was correct, and, in support of his position, cites Dillon on Municipal Corporations (§§ 622, 624), and Cooley’s Constitutional Limitations (697 et seq). Judge Dillon does assert the rule that in appropriating land for a public improvement the commissioners may consider the special benefits accruing to the landowner by the improvement, and deduct the amount of such benefits from the value of the property taken. Indeed, in all cases of the opening of streets or highways, where the same commissioners both ascertain the compensation and' assess the cost of improvement, that is unquestionably the rule. But, evidently, Mr. Dillon does not regard such proceedings as merely for the compulsory acquisition of the property, for he says (§ 617) that they involve the exercise of two different powers, viz., that of eminent domain for which the property is taken, and that of taxation, which includes the assessments on the property specially benefited. So in Genet v. City of Brooklyn (99 1ST. Y. 296), which arose out of a pi'oceeding to open Sackett streetUnder a special statute, where the commissioners both made the award for lands taken and the assessment on property benefited, Judge Andrews writes: “We think the argument fails in omitting to separate the two powers exercised by the Legislature in framing the act of 1868, viz., the power of taxation, and the right o'f eminent domain. * * * The right to compensation is the right of the citizen whose land is taken, which' .the^Legislature can neither ignore nor deny. The power of taxation, on the other hand, is vested in the Legislature, and is practically absolute, except as restrained by constitutional limitations. * * * The imposition 'of local assessments for benefits is exercise of the taxing power.” Mr. Cooley asserts that, in the absence of constitutional restrictions, the benefits that the landowner, may derive from the improvement may be taken into account measuring the compensation he is to receive for the-land taken. ■. It' is unnecessary for-us to discuss whether, in a proceeding strictly and solely in the exercise of the power of eminent domain, benefits. to the landowner may be deducted from the value of the land taken. Assuming that such, a rule would- not be unconstitutional, it plainly cannot obtain in the .proceeding under review. As already stated, ordinarily commissioners in street openings are both commissioners of estimate and commissioners of assessment, and .such was formerly the case-in the city of Brooklyn., But by title 1.9 of the Charter of the city (Laws of' 1888, chap. 583) the commissioners determine only the value of the land taken, while the board of assessors assess the cost of the improvement on the abutting property within the assessment district. Therefore, if the commissioners - of. estimate should make any deduction from the award for supposed benefits, the landowner would be compelled ’ to pay- his share of the same benefits over again when the cost of the improvement, is assessed upon him, This would plainly be unjust.

The order appealed from should be reversed, with ten-dollars costs- and disbursements, and the matter- remitted to. the commissioners, with directions to make a new report.

All concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to commissioners with directions to make a new report.